22 Minn. 173 | Minn. | 1875
Section 5, ch. 72, Gen. St., prescribes the form of the oath “to be administered to petit jurors empanelled for the trial of any civil action or proceeding.” This oath was administered to the jury in this case. This is alleged as error by the appellant, who claims that the proper oath to be administered on the trial of appeals of this character is the one prescribed to be taken by the commissioners appointed to ascertain and determine the amount of compensation to be paid, before entering upon their duties, by Gen. St. ch 34, § 17, known as the general railroad act. This act is silent upon the subject of the oath to be given to the jury, except that it requires the “ matter to be submitted to a jury, and tried as other appeal cases are tried.” Section 25. In the absence of any express provision of statute prescribing a particular form of the oath to be administered in cases of this character, no good reason can be conceived why the general statute first above quoted should not apply. Clearly the clause, “ any civil action or proceeding,” is sufficiently broad to embrace an appeal
2. It is objected by the company that the only testimony upon which the verdict of the jury was based was the value of the premises taken, and it must be assumed from this that the jury did not take into account the fact that the fee remained in the owner, and that the company only required an exclusive right of use and occupancy for railroad purposes for a limited term of years. All that appears from the record before us on this subject is the following : “ Six witnesses were called and sworn on the part of claimants (the respondents here) and testified solely as to the value of the premises.” The company then moved to dismiss the appeal on this among other grounds : ‘ ‘ That there is no evidence on which the jury can assess the damages or compensation under the statute on which the proceedings and appeal are based.’’ This motion being denied, the company then called several witnesses, who “testified solely as to the value of the premises,” and then rested, whereupon claimants “introduced rebutting-testimony on the question of value.” The court then instructed the jury as to the issue which they were to determine, and the rules of law by which they were to be governed, no part of which, so far as this question is concerned, was objected to by the company. From this statement of facts, gathered from the paper-book, it is difficult to see how the precise point here presented was ever
3. The ownership of the premises in question by the respondents, and the extent and character of their respective interests, distinctly appear from the petition of the company upon which the commissioners were appointed. That they were not bound, on the trial of the ajipeal, to introduce evidence upon the question of ownership, is fully settled by this court in St. Paul & Sioux City R. Co. v. Matthews, 16 Minn. 341.
The mortgagees were not necessary parties to the appeal. The statute (Gen. St. ch. 34, § 22,) expressly allows the appeal to be taken by “ any party interested.”
The question as to the amount of the mortgage debt was not before the jury, neither was it necessary, for these considerations, in determining any rights involved in the. appeal as between the company and respondents. The damage sustained by them, by reason of the taking of their property, was the same, whether it was encumbered by a mortgage or not.
On the motion to dismiss the appeal it was objected by the company that the jury had not examined the premises in question. This objection could only be urged, if at all, after application and refusal, and it appears in this case that a view was had on the request of the company.
The damages in respect to each lot were assessed both by
The charge of the court to the jury, upon the question of interest upon the amount of their assessment, is fully sustained by the decision of this court in Warren v. First Div. St. P. & P. R. Co., 21 Minn. 424.
Order affirmed.